A recent Administrative Appeals Office decision (Matter of Simeio Solutions, LLC) held that an amended application for an H-1B MUST be filed when a new Labor Condition application is supposed to be filed with USCIS due to a change in a H-1B worker’s worksite location. What does this mean in practical terms? What are an employers responsibilities in these situations? I hope to answer these questions below.
Whenever a H-1B application is filed, it must contain a Labor Condition Application (LCA). The LCA is filed with the department of labor, and part of its purpose is to ensure that the H-1B worker will be paid at least the prevailing wage for the geographical area in which the worksite is located. So the employer is required to put in the address of the worksite location as well as the DOL defined metropolitan statistical area (MSA). It is the MSA that determines what the prevailing wage is, as these wages are only calculated on an MSA basis (not a city by city or town by town basis). If the H-1B worker changes worksite locations within the same MSA, there is no issue as the employer, through the LCA, has already guaranteed that the prevailing wage will be paid. However, if the new H-1B worksite is in a new MSA, then no such guarantee has been made, and, since there is a chance that the conditions of employment may change (i.e., the prevailing wage for that MSA could be higher so the wage may need to change), USCIS and the AAO determined that this would constitute a material change in the terms and conditions of employment. Any material change requires the filing of an amended H-1B application. Prior to this decision, many employers would simply file a new LCA, post the new LCA in compliance with the regulations and send the new LCA to USCIS without filing an entirely new application (and USCIS was ok with this, and had issues certain correspondence that it was their policy). However the AAO held that this is insufficient and a new application is needed.
It is also important to note that USCIS had issued guidance to practitioners previously that all that was needed was the amended LCA, so USCIS, in this case, changed that policy. For this reason, USCIS has provided a grace period for those employers who have H-1B workers that fall into the above category (i.e., they changed MSA worksite locations prior to May 21, 2015). As long as the employer files an amended H-1B by August 17, 2015, they will not take any action against these employers.
Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.